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Second Circuit Weighs in on Tax Court’s Refund Jurisdiction

Borenstein v. Commissioner is an interesting opinion involving the intersection of canons of statutory construction and jurisdiction. Recently, the US Court of Appeals for the Second Circuit reversed the US Tax Court’s holding in Borenstein that the court lacked jurisdiction to order a refund of an undisputed overpayment made by the taxpayer. The case, which we discussed in a prior post, involved interpreting statutory provisions dealing with claims for a refund after a notice of deficiency was issued. The Tax Court’s holding was based on the application of the plain meaning rule to Internal Revenue Code (Code) Section 6512(b)(3), which limit its jurisdiction to order refunds of overpayments. In the Tax Court proceeding, the taxpayer and the government disagreed on the interpretation of the words “(with extensions)” in Code section 6512(b)(3) which provides that the Tax Court has jurisdiction to order a refund of overpayments made during the three years...

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Weekly IRS Roundup February 4 – 8, 2019

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of February 4 – 8, 2019. February 4, 2019: The IRS released final instructions for Form 1065, US Return of Partnership Income, incorporating changes made by the Tax Cuts and Jobs Act. February 5, 2019: The IRS issued a news release postponing certain tax deadlines for taxpayers affected by the earthquake that occurred in Alaska on November 30, 2018. February 6, 2019: The IRS released final instructions for Form 1041, US Income Tax Return for Estates and Trusts, and supporting schedules, incorporating changes made by the Tax Cuts and Jobs Act. February 6, 2019: The IRS released final instructions for Form 8991, dealing with the base erosion and anti-abuse tax (BEAT) of section 59A of the Code, enacted as part of the Tax Cuts and Jobs Act. February 7, 2019: The IRS issued a news release providing guidance on identifying and avoiding...

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Proposed BEAT Regulations | Tax-Free Transactions May Give Rise to a Liability

On December 13, 2018, US Department of the Treasury and the Internal Revenue Service (IRS) released proposed regulations for the Base Erosion and Anti-Abuse Tax (the BEAT), which was added to the Code as part of the 2017 Tax Act. The proposed regulations provide helpful guidance on a range of important topics and generally go a long way toward a reasonable implementation of a very challenging statute. There is one aspect of the proposed regulations, however, that may be an unwelcome surprise for many taxpayers; the proposed regulations treat stock consideration in non-cash transactions as BEAT “payments,” thereby creating the potential for BEAT liability in situations involving certain liquidations, tax-free reorganizations and other non-cash transactions. Located in section 59A, the BEAT imposes a minimum tax on US corporations (and certain foreign corporations, which are not the focus of this Insight) that consistently have annual gross receipts of $500...

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Senate Confirms Rettig as Next IRS Commissioner; Desmond Next?

On September 12, 2018, the Senate confirmed, by a vote of 64-33, Charles P. Rettig to be Commissioner of the Internal Revenue for the term expiring November 12, 2022. We previously discussed the nomination of Mr. Rettig and his background here. The IRS Commissioner presides over the United States’ tax system and is responsible for establishing and interpreting tax administration policy and for developing strategic issues, goal and objectives for managing and operating the IRS. This includes responsibility for overall planning, directing, controlling and evaluating IRS policies, programs, and performance. The IRS Commissioner is also required by statute under Internal Revenue Code (Code) Section 7803 to ensure that all IRS employees are familiar with and act in accord with the Taxpayer Bill of Rights. The nomination of Michael J. Desmond to be Chief Counsel of the Internal Revenue Service (IRS) remains pending in the Senate. We previously discussed the...

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Weekly IRS Roundup August 20 – 24, 2018

Presented below is our summary of significant IRS guidance and relevant tax matters for the week of August 20 - 24, 2018: August 21, 2018: The IRS and Treasury released Notice 2018-67, which provides guidance regarding separately calculating the unrelated business taxable income (UBTI) of each trade or business conducted by a tax-exempt entity. Section 512(a)(6), enacted as part of tax reform, requires this separate calculation by tax-exempt organizations with more than one unrelated trade or business. August 21, 2018: The IRS and Treasury released Notice 2018-68, which provides guidance regarding new section 162(m). Section 162(m), enacted as part of tax reform, limits the deduction for compensation paid by a publicly traded corporation to a covered employee. The notice provides guidance regarding the “grandfather” exception for certain compensation arrangements in effect on November 2, 2017. See our commentary for more information. August 22, 2018: The IRS...

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News of Wayfair Decision Breaks during Tax in the City® New York

The first New York meeting of McDermott’s Tax in the City® initiative in 2018 coincided with the June 21 issuance of the US Supreme Court’s (SCOTUS) highly anticipated Wayfair decision. Just before our meeting, SCOTUS issued its opinion determining that remote sellers that do not have a physical presence in a state can be required to collect sales tax on sales to customers in that state. McDermott SALT partner Diann Smith relayed the decision and its impact on online retailers to a captivated audience. Click here to read McDermott’s insight about the decision. The event also featured a CLE/CPE presentation on the ethical considerations relative to tax reform by Kristen Hazel, Jane May and Maureen O’Brien, followed by a roundtable discussion on recent tax reform insights led by Britt Haxton, Sandra McGill, Kathleen Quinn and Diann Smith. Below are a few takeaways from last week’s Tax in the City® New York: Supreme Court Update: Wayfair – Jurisdiction to Tax –...

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A Look at Treasury’s Recent Efforts to Reform Regulation

Just 10 days after his inauguration, President Trump signed Executive Order 13771, establishing the tenet of deregulation to be adopted by the Trump administration. Executive Order 13771 outlined the Trump administration’s vision for reducing regulation and controlling regulatory costs, and established a principle that for every one new regulation issued at least two prior regulations be identified for elimination — the “one in, two out" principle. President Trump’s Call for Reducing Tax Regulatory Burdens. Access the full article. Originally published in Law360, June 2018.

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Tax in the City® Seattle Proves to be the Largest Turnout to Date

The second meeting of McDermott’s Tax in the City® initiative in Seattle was held on May 22, 2018 at the Amazon headquarters. McDermott established Tax in the City® in 2014 as a discussion and networking group for women in tax aimed to foster collaboration and mentorship, and to facilitate in-person connections and roundtable events around the country. With the highest attendance rate of any Tax in the City® event to date, the May meeting featured a CLE/CPE presentation about Ethical Considerations around Tax Reform by Elizabeth Chao, Kirsten Hazel, Jane May and Erin Turley, followed by a roundtable discussion about recent tax reform insights led by Britt Haxton, Sandra McGill and Diann Smith. Here’s what we covered at last week’s Tax in the City® Seattle: Tax Reform: Ethical Considerations – Because of tax reform, taxpayers face increased uncertainty and will likely face increased IRS/state scrutiny for their 2017 & 2018 returns. Therefore, it’s crucial...

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IRS Implementation of Tax Reform Continues to Move Forward

The Internal Revenue Service (IRS) has been busy in recent months working on implementing the recent tax reform legislation. The latest announcement by the IRS focuses on the $10,000 cap on the amount of state and local taxes that can be deducted for federal income tax purposes. In a press release and release of guidance in the form of Notice 2018-54, the IRS announced that proposed regulations will be issued addressing this issue to help taxpayers understand the relationship between federal charitable contribution deductions in exchange for a tax credit against state and local taxes owed. The press release, Notice and forthcoming proposed regulations are in response to workarounds by various high property tax states allowing local governments to set up charitable organizations that can accept property tax statements. Based on these materials, it is anticipated that the IRS will disagree with the workarounds: The Treasury Department and the IRS intend to...

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A 360-Degree View: March and April 2018

Wrapping Up March – and Looking Forward to April Top March Posts You May Have Missed White House Intends to Nominate Michael J. Desmond to High-Level Roles in the IRS and the Department of Treasury The IRS May Be Coming for Your Bitcoins Tax Court Judicial Conference This Week in Chicago Upcoming Tax Controversy Activities in April Our lawyers will present on key tax topics during the month of April. We hope to see you soon. April 24, 2018: Todd Welty, Kristen Hazel, Elizabeth Erickson, John Lutz and Andrew Roberson will present “Taking Reasonable Positions and Retroactive Regulations” at McDermott’s Inaugural Tax Symposium in our Chicago office. The panel will address Gottesman, the ability of IRS to issue retroactive regulations, IRS authority issues, and impacts on return positions. Led by our senior practitioners, our 2018 Symposium is a must-attend event for senior tax and employee benefits leaders seeking to optimize the opportunities and navigate the...

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